Nevsun Resources Ltd v. Araya and Others

Abstract

Human rights — Modern international human rights law — Scope — Customary international law prohibitions — Forced labour — Slavery — Cruel, inhuman or degrading treatment — Crimes against humanity — Addressing breaches of customary international law prohibitions — Role of national courts — Respondents claiming indefinite conscription through military service into forced labour in Eritrea at mine — Mine owned by Canadian company — Respondents claiming subjection to violent, cruel, inhuman and degrading treatment — Respondents bringing class action against Canadian company in Canada — Respondents seeking damages for breaches of customary international law prohibitions and domestic torts — Justiciability of claim — Whether Canadian courts lacking subject-matter jurisdiction — Act of State doctrine — Whether claims based on customary international law to be struck — Whether pleadings disclosing no reasonable claim — Whether plain and obvious claims having no reasonable prospect of success

Jurisdiction — Subject-matter jurisdiction — Whether Canadian courts having jurisdiction over respondents’ claim — Respondents claiming indefinite conscription through military service into forced labour in Eritrea at mine owned by Canadian company — Respondents claiming subjection to violent, cruel, inhuman and degrading treatment — Eritrea’s National Service Program — Whether respondents’ claim concerning sovereign act of foreign government — Act of State doctrine — Whether part of Canadian law — Underlying principles of act of State doctrine — Conflict of laws — Judicial restraint — Whether respondents’ claim barred

Relationship of international law and municipal law — Customary international law — Whether part of Canadian law — Whether conflicting Canadian legislation — Separation of powers — Customary international law prohibitions — Forced labour — Slavery — Cruel, inhuman or degrading treatment — Crimes against humanity — Respondents relying on norms of customary international law in claim for damages against Canadian company — Role of national courts in developing international law — Evolution of customary international law — State practice — Opinio juris — Peremptory norms — Jus cogens — Whether customary international law norms applying to corporations — Right to an effective remedy — Canada’s international obligation under International Covenant on Civil and Political Rights, 1966 — Whether plain and obvious Canadian courts could not develop a civil remedy in domestic law for corporate violations of customary international law norms — Whether plain and obvious respondents’ claims against Canadian company could not succeed — Act of State doctrine — Whether part of Canadian law — Extent and scope

Damages — Customary international law prohibitions — Forced labour — Slavery — Cruel, inhuman or degrading treatment — Crimes against humanity — Breaches — Civil law remedies — Respondents seeking damages for breaches of customary international law prohibitions and domestic torts — Whether claim for damages for breaches of customary international law prohibitions under Canadian law possible — Whether norms different from existing domestic torts — Right to an effective remedy — Canada’s international obligation under International Covenant on Civil and Political Rights, 1966 — Whether plain and obvious Canadian courts could not develop a civil remedy in domestic law for corporate violations of customary international law norms — Whether respondents’ claims allowed to proceed — The law of Canada